Mr. Justice Hernández
delivered the opinion of the court.
In this case the Judge of the District Court of Guayama rendered an opinion and judgment which reads as follows:
“Opinion. — In a duly sworn petition, Lucas Yon, tbe petitioner, alleges: (a) That he is the father of a girl called Josefa Yon Rodriguez, born on March 19, 1890, who has been living under the same roof with him and under his parental authority; (b) That the defendant, Lorenzo Gómez, a resident of Cayey, maintained amorous relations with the said daughter of the petitioner without the latter’s consent; (c) That on or about March 22 of the current year, the defendant, accompanied by the Justice of the Peace, came to the house of the petitioner, for the purpose of contracting marriage with said Josefa Yon, which he was unable to do because her father, the petitioner, did not give his consent; (d) That the following'night the defendant took away Josefa and placed her in his own house in the said town of Cayey, where he holds her at the present time; (e) That the defendant is unlawfully detaining the daughter of the petitioner against [678]*678the will of the latter, depriving him of the right of parental authority, and restraining her of her liberty; (/) That the plaintiff has sought to obtain the possession of his daughter, and the defendant refuses to give her up. On the strength of these allegations he applies to the court for a writ of habeas corpus directed to the defendant, Lorenzo Gómez, summoning him to appear with the person of the daughter of the petitioner and state his reasons for holding her, and that a final order issue requiring the defendant immediately to restore and deliver said young girl to the petitioner, in order that she may remain under his parental ■ authority.
“The writ issued by the court upon this petition having been duly served, the defendant appeared, accompanied by the girl, Josefa Yon, and in his answer he admitted the first three statements of fact of .the petition, denying the last two, and admitting as to the fourth that it is true that the girl is now voluntarily living with the defendant against the will of her father.
“At the hearing witnesses for both parties were heard, the petitioner himself and his daughter, Josefa Yon, testifying under oath as witnesses for the petitioner, and the defendant himself on his own behalf.
“From the facts admitted and the evidence heard in this case, it appears that the question is one of a girl over 18 years of age, who, abandoning the paternal home of her own will, now lives in company with her lover, refusing to return to her former home.
“The right of parental authority which the petitioner has over his daughter until she attains her majority, or until she is legally emancipated, has not been denied, nor can it be made the subject of discussion in these proceedings, because the preferential right to the custody of a minor is not involved. (See Wood on Habeas Corpus, p. 135.)
“From the evidence in this case, we understand that the girl, the daughter of the petitioner, is not detained or restrained of her liberty by the mere fact of her living in company with her lover, and we could not admit.that a constructive detention or restriction is involved, because although it is true that the girl has not yet attained 21 years of age, fixed by section 317 of our Civil Code as the age of majority, it is no less true that she has attained 18 years of age and at this age it cannot be said that we are dealing with an infant of tender years, but with a young woman of sufficient judgment and discretion to weigh the consequences of her acts and express her will in a conscious manner; and no coercion or moral restriction implying restraint of liberty can be employed against her.
[679]*679“Treatise writers and American jurisprudence, referring to cases where controversies have arisen as to the right to the custody of minors, have arrived at the conclusion that, even before attaining majority, there is a certain age when a minor has the discretion' to decide and express his opinions, and in such eases a writ of habeas corpus must be confined to placing the minor at liberty, provided there be actual restraint or illegal deprivation of liberty. (See Church on Habeas Corpus, No. 423, 439, 445; Wood, pp. 112 and 135.)
“In an opinion by Judge Cochran, cited in the work of Church on Habeas Corpus, page 673, he says in this connection:
“ ‘The cases which have been decided on this subject show that, although a father is entitled to the custody of his children till they obtain the age of 21, this court will not grant a habeas corpus to hand a child, which is below that age, over to its father, provided that it has attained an age of sufficient discretion to enable it to exercise a wise choice for its own interests. The whole question is what is that age of discretion? We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion; for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The legislature has given us a guide, which we may safely follow, in pointing out sixteen as the age up to which the father’s right to the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him. And it is clearly most desirable that, at least up to that age, no encouragement should be given to girls to withdraw themselves from the paternal care.
“That is the doctrine which has generally been accepted in numerous decisions of the American courts, although different ages are fixed at which the opinion of the minor may be heard.
‘ ‘ Section 223 of our Civil Code, in treating of the effects of parental authority, confines itself to stating that the father and the mother have, with respect to their children not emancipated, the duty of supporting them, keeping them in their company, etc.; absolutely nothing is said (as in other modern Codes), with respect to the duties of the children, nor their obligation to remain in the parental home until a certain age. But on the other hand, sections 303 to 314 implicitly recognize that at 18 years of age the minor has sufficient discretion, inasmuch as said age is fixed as the minimum limit for obtaining emancipation, even against the parental will in certain cases (sec. 305); and thus we may reach the conclusion that if we were to apply [680]*680to Porto Rico tlie doctrine sustained in American jurisprudence, we could take as a maximum basis for the discretion of the minor, the age of 18 years; and as a consequence of this deduction, we may affirm that when it is a question of a young girl of 18 years of age, there must be real and actual restraint of her liberty, a constructive restraint or a mere moral coersion deduced from her lack of legal capacity to give consent, not being sufficient.
“In the case of Adelina Prieto v. St. Alfonsus Convent of Mercy, decided by the Supreme Court of Louisiana on January 9, 1900, it was held that a writ of habeas corpus
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Mr. Justice Hernández
delivered the opinion of the court.
In this case the Judge of the District Court of Guayama rendered an opinion and judgment which reads as follows:
“Opinion. — In a duly sworn petition, Lucas Yon, tbe petitioner, alleges: (a) That he is the father of a girl called Josefa Yon Rodriguez, born on March 19, 1890, who has been living under the same roof with him and under his parental authority; (b) That the defendant, Lorenzo Gómez, a resident of Cayey, maintained amorous relations with the said daughter of the petitioner without the latter’s consent; (c) That on or about March 22 of the current year, the defendant, accompanied by the Justice of the Peace, came to the house of the petitioner, for the purpose of contracting marriage with said Josefa Yon, which he was unable to do because her father, the petitioner, did not give his consent; (d) That the following'night the defendant took away Josefa and placed her in his own house in the said town of Cayey, where he holds her at the present time; (e) That the defendant is unlawfully detaining the daughter of the petitioner against [678]*678the will of the latter, depriving him of the right of parental authority, and restraining her of her liberty; (/) That the plaintiff has sought to obtain the possession of his daughter, and the defendant refuses to give her up. On the strength of these allegations he applies to the court for a writ of habeas corpus directed to the defendant, Lorenzo Gómez, summoning him to appear with the person of the daughter of the petitioner and state his reasons for holding her, and that a final order issue requiring the defendant immediately to restore and deliver said young girl to the petitioner, in order that she may remain under his parental ■ authority.
“The writ issued by the court upon this petition having been duly served, the defendant appeared, accompanied by the girl, Josefa Yon, and in his answer he admitted the first three statements of fact of .the petition, denying the last two, and admitting as to the fourth that it is true that the girl is now voluntarily living with the defendant against the will of her father.
“At the hearing witnesses for both parties were heard, the petitioner himself and his daughter, Josefa Yon, testifying under oath as witnesses for the petitioner, and the defendant himself on his own behalf.
“From the facts admitted and the evidence heard in this case, it appears that the question is one of a girl over 18 years of age, who, abandoning the paternal home of her own will, now lives in company with her lover, refusing to return to her former home.
“The right of parental authority which the petitioner has over his daughter until she attains her majority, or until she is legally emancipated, has not been denied, nor can it be made the subject of discussion in these proceedings, because the preferential right to the custody of a minor is not involved. (See Wood on Habeas Corpus, p. 135.)
“From the evidence in this case, we understand that the girl, the daughter of the petitioner, is not detained or restrained of her liberty by the mere fact of her living in company with her lover, and we could not admit.that a constructive detention or restriction is involved, because although it is true that the girl has not yet attained 21 years of age, fixed by section 317 of our Civil Code as the age of majority, it is no less true that she has attained 18 years of age and at this age it cannot be said that we are dealing with an infant of tender years, but with a young woman of sufficient judgment and discretion to weigh the consequences of her acts and express her will in a conscious manner; and no coercion or moral restriction implying restraint of liberty can be employed against her.
[679]*679“Treatise writers and American jurisprudence, referring to cases where controversies have arisen as to the right to the custody of minors, have arrived at the conclusion that, even before attaining majority, there is a certain age when a minor has the discretion' to decide and express his opinions, and in such eases a writ of habeas corpus must be confined to placing the minor at liberty, provided there be actual restraint or illegal deprivation of liberty. (See Church on Habeas Corpus, No. 423, 439, 445; Wood, pp. 112 and 135.)
“In an opinion by Judge Cochran, cited in the work of Church on Habeas Corpus, page 673, he says in this connection:
“ ‘The cases which have been decided on this subject show that, although a father is entitled to the custody of his children till they obtain the age of 21, this court will not grant a habeas corpus to hand a child, which is below that age, over to its father, provided that it has attained an age of sufficient discretion to enable it to exercise a wise choice for its own interests. The whole question is what is that age of discretion? We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion; for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The legislature has given us a guide, which we may safely follow, in pointing out sixteen as the age up to which the father’s right to the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him. And it is clearly most desirable that, at least up to that age, no encouragement should be given to girls to withdraw themselves from the paternal care.
“That is the doctrine which has generally been accepted in numerous decisions of the American courts, although different ages are fixed at which the opinion of the minor may be heard.
‘ ‘ Section 223 of our Civil Code, in treating of the effects of parental authority, confines itself to stating that the father and the mother have, with respect to their children not emancipated, the duty of supporting them, keeping them in their company, etc.; absolutely nothing is said (as in other modern Codes), with respect to the duties of the children, nor their obligation to remain in the parental home until a certain age. But on the other hand, sections 303 to 314 implicitly recognize that at 18 years of age the minor has sufficient discretion, inasmuch as said age is fixed as the minimum limit for obtaining emancipation, even against the parental will in certain cases (sec. 305); and thus we may reach the conclusion that if we were to apply [680]*680to Porto Rico tlie doctrine sustained in American jurisprudence, we could take as a maximum basis for the discretion of the minor, the age of 18 years; and as a consequence of this deduction, we may affirm that when it is a question of a young girl of 18 years of age, there must be real and actual restraint of her liberty, a constructive restraint or a mere moral coersion deduced from her lack of legal capacity to give consent, not being sufficient.
“In the case of Adelina Prieto v. St. Alfonsus Convent of Mercy, decided by the Supreme Court of Louisiana on January 9, 1900, it was held that a writ of habeas corpus to deliver to the mother a girl over 17 years of age but under 18, who had entered the convent and wished to remain therein against the will of her mother, should be considered. (L. R. A., 47-656.)
“But in this ease there really existed a certain actual restraint of liberty owing to the religious confinement and the submission to the discipline of the convent; and even then the opinion of the majority was opposed by the dissenting opinion of Judge Breaux.
“It is a doctrine generally admitted in jurisprudence that the principal or essential purpose of a writ of habeas corpus, is to free the petitioner from unlawful imprisonment or restraint, and such imprisonment is the basis of the writ in the statute and common law. (People ex rel.; Tappan v. Portel, 1 Due, 709; State v. Baird, 18 N. J. eq., 194) and when it is shown that such restraint does not exist, the writ answers no purpose and the jurisdiction ceases. In this connection Woods says (Treatise on the legal writs of Mandamus, Habeas Corpus, Certiorari, etc., p. 112):
“In general this writ to inquire into the cause of detention, in all cases, whether unissued by the Supreme Court or one of the justices thereof, can only be allowed for the purpose of delivering the person, for whose relief it is asked, from illegal imprisonment or restraint. The only exception is in the case of an infant of such tender years as to be incapable of making a choice for itself.
“As will be observed, the only exception is when the question is one of an infant of such tender years as to be incapable 'of making a choice for itself; and this exception is logical in assuming that the lack of age or discernment prevents an expression of the will in a conscious manner, and this lack of conscious will is equivalent in such cases to a restraint of liberty.
“Sections 469 et seq. of the Code of Criminal Procedure of Porto Rico, which treat of habeas corpus, make express reference to imprisonment, detention or restraint of liberty, and authorize the issue of a writ of habeas corpus only where the person in whose behalf the [681]*681■writ is applied for is imprisoned or restrained of his liberty in a ■specific place; wherefrom it is to de deduced that according to onr law in force, applicable to the case, it is an indispensable requisite for the issuance of a writ of habeas corpus, that the person in whose behalf it is applied for be imprisoned, detained or deprived of his liberty by some person having him in his custody; and these circumstances do not exist in this case, where the person on whose behalf the writ is applied for expressly declared that she is not detained nor deprived of her liberty, and that she lives, not under the custody, but in the company of the defendant of her own will, and is in a position to leave the place whenever she wishes to do so.
“Decision. — For the reasons set forth in the foregoing opinion, and inasmuch as a writ of habeas corpus lies only when a person is imprisoned, detained or unlawfully deprived of his liberty, and in this ease there is no detention or restraint of liberty, the evidence showing that the minor is living, not under the custody, but in the company of the defendant voluntarily, and that said minor has attained the age of 18 years, and in view of the provisions of sections 469 et seq. of the Code of Criminal Procedure in force, this application for a writ of habeas corpus is denied, with the costs against the petitioner. Guayama, P. R., May 5, 1908. Luis Muñoz Morales, District Judge.”
Counsel for the petitioner took an appeal from this decision, which it devolves upon ns now to decide, after having examined the original record and considered the briefs of both parties in support of their respective contentions.
We agree with the decision of the District Court of ■Gruayama.'
This is the case of a young woman who abandoned the paternal home to live with her lover, the latter not having her under his custody nor in any way restraining her of her liberty. This young girl no doubt falls short of her filial duties and fails to recognize the authority of those who brought her into the world; but the remedy of habeas corpus is not a measure established by the law to punish the disobedience of the daughter and force her to return to the house of her parents. The defendant, Lorenzo Gómez, cannot be compelled to restore and deliver said young woman to her [682]*682father,’ the petitioner, because it does not appear from the evidence that he has her under his custody, nor that he is compelling her to live with him by restraining her of her liberty.
The young woman is 18 years of age, and it cannot be either presumed or supposed that like an infant of tender years, she acts unconsciously or that in her acts there is any restraint or limitation of liberty.
In the proceedings upon the application for a writ of habeas corpus filed by Eosalia Eendon, on behalf of her daughter, Teresa Eendon, against the Orphan Asylum of Bayamón, originally decided by this Supreme Court on February 15,. 1904, a decision was rendered directing the delivery of Teresa, to her mother; but this case bears no analogy to the case under consideration, because Teresa was only six years of age and the young woman in this case was 18 years of age when she left the house of her parents to go with her lover.
Therefore, the decision appealed from should be affirmed,, with the costs of the appeal against the appellant.
Affirmed.
Justices Figueras and Wolf concurred.
Mr. Justice MacLeary dissented.